IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.1029 of 2009
RAJESH YADAV , S/o - Mahendra Yadav, resident of village - Chakkadih, P.S - Banka, District
- Banka.
--------- Petitioner.
Versus
The State of Bihar --------- Opposite Party.
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Appearance :
For the Petitioner/s: Mr. Ajay Mukherjee, Adv.
For the State : Mr. G.P. Jaiswal, APP
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2 11-07-2011 Learned counsel for the petitioner seeks permission
to delete the Opposite Party no. 2 from the array of the party.
Prayer is allowed.
The accused petitioner has preferred this criminal
revision petition against the order dated Ist June 2009 passed
by the learned Additional Sessions Judge, F.T.C. II, Banka in
Sessions Trial no. 975 of 2007 by which his petition dated 19th
May 2009 filed by the petitioner to declare him a juvenile
and to separate the trial has been rejected.
Heard Mr. Ajay Mukherjee the learned counsel for
the petitioner and learned counsel for the State Sri G.P.
Jaiswal, A.P.P.
The learned counsel for the petitioner submits that
the petitioner was facing trial in the aforesaid Sessions Trial
no. 975 of 2007 arising out of Banka P.S. Case no. 341 of
2006. G.R. no. 1329 of 2006 and the petition dt. 19th May
2009 was filed on behalf of the petitioner for separating the
trial and the petitioner may be declared juvenile. The prayer of
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the petitioner has been rejected by the impugned order passed
by the learned Additional Sessions Judge on the ground that
the plea of juvenile was rejected by the learned Chief Judicial
Magistrate on 21st July 2007 and also by the Additional
Sessions Judge vide order dated 18th July 2008 and also on the
ground and under examination u/s 313 Cr. P.C. the petitioner
has stated his age about 25 years and his facial appearance also
shows that the petitioner is not a juvenile. He has further
submitted that never full-fledged inquiry was made to consider
as to whether the petitioner was a juvenile at the time of
occurrence. He has submitted that the date of the birth of the
petitioner is 15th June 1993 and the date of occurrence is 6th
November 2006. He has further submitted that the petitioner
is also an accused in Case no. 417/2008. In Sessions Trial no.
786/2007 also the learned Additional Sessions Judge, F.T.C.-
III, vide order dated 27th May, 2009 has declared the petitioner
as a juvenile. He has also submitted that in view of the
provision contained in Section 7A of the Juvenile Justice (Care
and Protection of Children) Act, 2000 the Claim of juvenility
can be raised before any Court. The opinion whether accused
person was a juvenile on the date of commission for the
offence, the Court shall make an inquiry, take such evidence as
may be necessary.
“So as to determine the age of such person, and shall
record the finding whether the person is juvenile or a child or
not stating his age as nearly as may be.”
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He has further submitted for holding an inquiry
regarding the determination of age there is procedure for the
determination of age under the provisions contained in Rule
22. The procedure to be followed by a Board in holding
inquiry and the determination of age is contemplated under
Sub-rule-5, Rule-22 of the Bihar Juvenile Justice (Care and
Protection of Children) Rules 2003. It has been mentioned in
Rule 22 (5) that in every case concerning a juvenile or a child
the Court shall either obtain. (i) a birth certificate given by a
Corporation or a Municipal Authority; (ii) a date of birth
certificate from the school first attended or, (iii) matriculation
or equivalent certificate if available; and (iv) in the absence
(i) to (iii) above, the medical opinion may be obtained by a
duly constituted medical board, subject to a margin of one
year, in deserving cases for the reasons to be recorded by
such Medical Board, regarding his age. and when passing
order in such case shall, after taking into consideration such
evidence as may be available or the medical opinion, as the
case may be, record a finding in respect of his age.
It is further submitted that the aforesaid procedure
have not been followed in determining the age of the petitioner
by the learned Court below as it appears from the impugned
order.
The learned counsel for the State could not
controvert the contention of the learned counsel for the
petitioner while opposing the prayer of the petitioner.
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After hearing the learned counsel for both the parties
and on perusal of the impugned order, it appears that the
contention of the learned counsel for the petitioner is correct.
The learned trial Court has not taken into consideration the
aforesaid procedures for the determination of the age of the
petitioner. In this view of the matter, in my opinion, the
impugned order is not fit to be sustained and is liable to be set
aside. It is set aside. The matter for the determination of the
age is remanded back to the learned Additional Sessions
Judge, FTC-II, Banka in view of the provision contained in
Section 7A of the aforesaid Act and the Rule 22 of the Bihar
Juvenile Justice (Care and Protection of Children) Rules, 2003
and will proceed with the case in accordance with law.
In the result, this petition is allowed.
Kamlesh (Amaresh Kumar Lal, J.)